End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Alabama Legal Ethics

V. LAW FIRMS AND
ASSOCIATIONS

5.1 Rule 5.1 Responsibilities of a Partner
and Supervisory Lawyer

5.1:100 Comparative Analysis of
Alabama Rule

Primary Alabama References: AL Rule
5.1

Background References: ABA Model Rule 5.1,
Other
Jurisdictions

Commentary:

Alabama Commentary:

5.1:101 Model Rule
Comparison

There are no differences between ARPC Rule 5.1 and the
model rule.

5.1:102 Model Code
Comparison

Inapplicable.

5.1:200 Duty of Partners to Monitor
Compliance with Professional Rules

Primary Alabama References: AL Rule
5.1(a)

Background References: ABA Model Rule
5.1(a), Other
Jurisdictions

Commentary: ABA/BNA § 91:201, ALI-LGL
§ 11, Wolfram §
16.2

Alabama Commentary:

Depending on the law firm's structure and the nature of
its practice, the steps needed to fulfill the requirements of ARPC Rule 5.1(a)
and (b) may vary from "informal supervision and an occasional admonition" in
a small firm to "more elaborate procedures" in a large firm or more ethically
difficult practice situations. Examples of "more elaborate procedures" include
confidential referral of ethical problems directly to a designated senior partner
or special committee and continuing legal education in professional ethics.

A disbarred or suspended attorney may be employed as a
paralegal, law clerk or legal assistant by another attorney subject to the following
conditions and restrictions: (1) no client contact; (2) close continuous and
regular supervision by the employing attorney; (3) employing attorney must file
a written report with the disciplinary commission; (4) supervising attorney
must be physically located within the same premises as the disbarred or suspended
attorney; (5) disbarred or suspended attorney shall not attend any court proceeding;
(6) no access to client funds; and (7) employing attorney shall confirm the
parameters of the employment in a quarterly report to the disciplinary commission.
(RO-96-08).

5.1:300 Monitoring Duty of
Supervising Lawyer

Primary Alabama References: AL Rule
5.1(b)

Background References: ABA Model Rule
5.1(b), Other
Jurisdictions

Commentary: ABA/BNA § 91:201, ALI-LGL
§ 11, Wolfram §
16.2

Alabama Commentary:

A lawyer with supervisory authority may not assume that
the subordinate is in compliance with the rules. Whether a duty to supervise
exists depends upon the particular circumstances.

5.1:400 Failing to Rectify the
Misconduct of a Subordinate Lawyer

Primary Alabama References: AL Rule
5.1(c)

Background References: ABA Model Rule
5.1(c), Other
Jurisdictions

Commentary: ABA/BNA § 91:201, ALI-LGL
§ 5, Wolfram §
16.2

Alabama Commentary:

A lawyer has an affirmative duty to mitigate if the lawyer
has knowledge of misconduct of a subordinate lawyer.

5.1:500 Vicarious Liability of
Partners

Primary Alabama References: AL Rule
5.1

Background References: ABA Model Rule 5.1,
Other
Jurisdictions

Commentary: ABA/BNA § 91:201, ALI-LGL
§§ 8,
9

Alabama Commentary:

In Davis v. Alabama State Bar, 676 So.2d 306 (Ala.
1996), the decision of the Alabama State Bar Disciplinary Board finding two
attorneys who were the sole partners in a law firm in violation of ARPC Rule
5.1 was upheld. The firm spent approximately $500,000 per year on advertising
which generated a large number of clients. The firm's often inexperienced associate
attorneys had "unmanageable caseloads" some consisting of close to 600 active
cases. The heavy caseloads meant that "the amount of time that could be spent
on each case was so limited as to make it impossible for them to adequately
represent their clients." Id. at 307-308. Further, the firm imposed policies
on its associates that "interfered with their adequate and professional representation
of their clients," including (1) time limits or restrictions on time spent with
clients and on cases, (2) a quota system on the number of new files opened,
and (3) not returning existing clients' telephone calls in order to make more
time to recruit new clients. Id. at 308. These activities violated ARPC
Rule 5.1 because they resulted in inadequate representation and a failure by
the partners to make reasonable efforts to insure that the associates in the
firm were conforming to the Rules of Professional Conduct. Id. at 307.

5.2:300 Reliance on a Supervisor's
Resolution of Arguable Ethical Issues

Primary Alabama References: AL Rule
5.2(b)

Background References: ABA Model Rule
5.2(b), Other
Jurisdictions

Commentary: ABA/BNA § 91:201, ALI-LGL
§ 5, Wolfram §
16.2

Alabama Commentary:

When a matter of professional judgment as to an ethical
duty is at issue, the supervisory lawyer, not the subordinate, may assume responsibility
for the decision. In situations where the question is arguable, the supervisor's reasonable resolution
of the issue should protect the subordinate professional from any subsequent
challenge. However, if the situation is such that there is clearly only one
reasonable course of action, then the supervisory and subordinate lawyer should
share responsibility for the decision. The fact that the subordinate acted at
the direction of a supervisory lawyer does not relieve the subordinate of responsibility
for such misconduct.

5.3 Rule 5.3 Responsibilities Regarding
Nonlawyer Assistants

5.3:100 Comparative Analysis of
Alabama Rule

Primary Alabama References: AL Rule
5.3

Background References: ABA Model Rule 5.3,
Other
Jurisdictions

Commentary:

Alabama Commentary:

5.3:101 Model Rule
Comparison

There are no differences between ARPC Rule 5.3 and the
model rule.

5.3:102 Model Code
Comparison

Inapplicable.

5.3:200 Duty to Establish
Safeguards

Primary Alabama References: AL Rule
5.3(a)

Background References: ABA Model Rule
5.3(a), Other
Jurisdictions

Commentary: ABA/BNA § 91:201, ALI-LGL
§§ 4, 5, Wolfram §
16.3

Alabama Commentary:

Because nonlawyer assistants do not have a background
in legal training and are not subject to professional discipline, the lawyer
must give them appropriate supervision and instruction including discussing
ethical obligations regarding non-disclosure of client information.

5.4:300 Forming a Partnership with
Nonlawyers

ARPC Rule 5.4(b) prohibits forming a partnership with
nonlawyers if any of the activities of the partnership involve the practice
of law. See (RO - 02-02) re: affiliation with a foreign lawyer.

5.4:400 Third Party Interference
with a Lawyer's Professional Judgment

Primary Alabama References: AL Rule
5.4(c)

Background References: ABA Model Rule
5.4(c), Other
Jurisdictions

Commentary: ABA/BNA § 51:901, ALI-LGL
§ 60, Wolfram §
8.8

Alabama Commentary:

The question of whether third party auditing of a lawyer's
billings pose confidential problems and interference with representation was
addressed in Ethics Opinion RO-98-02. One aspect of particular concern to the
Commission was a litigation management guidebook used by insurance companies
to direct lawyers in representing insurers. The Commission stated as follows:

The Commission is of the opinion that foremost among an
attorney's ethical obligation is the duty to exercise his or her independent
professional judgment on behalf of a client and nothing should be permitted
to interfere with or restrict the attorney in fulfilling this obligation. An
attorney should not allow litigation guidelines, or any other requirement or
restriction imposed by the insurer, to in any way impair or influence the independent
unfettered exercise of the attorney's best professional judgment in his or her
representation of the insurer.

The litigation guidelines imposed many requirements that
could result in a violation of Rule 5.4(c), including that a claims professional
manage all litigation. The Commission concluded that "a lawyer should not permit
an insurance company, which pays the lawyer to render legal services to its
insured, to interfere with the lawyer's independence of professional judgment.
. .through the acceptance of litigation management guidelines which have that
effect." Furthermore, the lawyer is under an obligation to not submit his bills
to a third party auditor without the consent of his client.

5.4:500 Nonlawyer Ownership in or
Control of Profit-Making Legal Service Organizations

Primary Alabama References: AL Rule
5.4(d)

Background References: ABA Model Rule
5.4(d), Other
Jurisdictions

Commentary: ABA/BNA § 91:401, ALI-LGL
§ 60, Wolfram § 16.4,
16.5

Alabama Commentary:

5.4:510 Group Legal
Services

5.4:520 Nonprofit Organizations
Delivering Legal Services

5.5 Rule 5.5 Unauthorized Practice of
Law

5.5:100 Comparative Analysis of
Alabama Rule

Primary Alabama References: AL Rule
5.5

Background References: ABA Model Rule 5.5,
Other
Jurisdictions

Commentary:

Alabama Commentary:

5.5:101 Model Rule
Comparison

There are no differences between ARPC Rule 5.5 and the
model rule. RO-86-52 is an interesting opinion regarding the practice of law
by in-house counsel. An attorney, not licensed to practice in Alabama, but admitted
to the Bar of another state, who is employed full-time by a company in Alabama
and does legal work exclusively for that company would not be considered to
be engaged in the unauthorized practice of law. The attorney should not make
court appearances for the company.

5.5:102 Model Code
Comparison

Inapplicable.

5.5:200 Engaging in Unauthorized
Practice

Primary Alabama References: AL Rule
5.5(a)

Background References: ABA Model Rule
5.5(a), Other
Jurisdictions

Commentary: ABA/BNA § 21:8001,
ALI-LGL §§ 3, 4, Wolfram §
15.1

Alabama Commentary:

5.5:210 Practice of Law by
Nonlawyers

An interesting decision is found in Godwin v. State,
2000 WL 869594 (Ala. 2000). There, the Court held that a nonlawyer executor
of an estate could not represent the estate.

5.5:220 Admission and Residency
Requirements for Out-of-State Lawyers

5.5:230 Pro Hac Vice Admission
[see also 8.1:240]

5.5:240 Performing Legal
Services in Another Jurisdiction

ARPC Rule 5.5(a) prohibits an attorney licensed to practice
law in Alabama from practicing law in a state if he is not admitted to the bar
or has had his license suspended or terminated by the State Bar. The definition
of practicing law may differ in various jurisdictions and it is the responsibility
of the attorney to know whether or not the activities in which he is participating
constitute the practice of law in these various jurisdictions.

5.5:300 Assisting in the
Unauthorized Practice of Law

Primary Alabama References: AL Rule
5.5(b)

Background References: ABA Model Rule
5.5(b), Other
Jurisdictions

Commentary: ABA/BNA § 21:8201,
ALI-LGL § 4, Wolfram §
15.1

Alabama Commentary:

An attorney admitted to the Bar in Alabama cannot help
another whom he knows is not an admitted attorney participate in practicing
law in any jurisdiction in Alabama. This rule does not prohibit attorneys from
giving aid and professional advice to nonlawyers whose occupations require a
certain understanding of the law such as social workers, accountants, financial
and commercial lenders, claims adjusters and persons employed by government
agencies. Attorneys are permitted to advise nonlawyers who wish to appear in
court pro se.

5.6 Rule 5.6 Restrictions on Right to
Practice

5.6:100 Comparative Analysis of
Alabama Rule

Primary Alabama References: AL Rule
5.6

Background References: ABA Model Rule 5.6,
Other
Jurisdictions

Commentary:

Alabama Commentary:

5.6:101 Model Rule
Comparison

There are no differences between ARPC Rule 5.6 and the
model rule.

5.6:102 Model Code
Comparison

Inapplicable.

5.6:200 Restrictions on Lawyers
Leaving a Firm

Primary Alabama References: AL Rule
5.6(a)

Background References: ABA Model Rule
5.6(a), Other
Jurisdictions

Commentary: ABA/BNA § 51:1201 ALI-LGL
§
9

Alabama Commentary:

In Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston,
678 So.2d 765 (Ala. 1996), the Court addressed the issue of whether the predecessor
to ARPC Rule 5.6 allowed a law firm to withhold retirement payments from an
attorney who, after leaving the firm, started his own practice and violated
a non-competition agreement in his contract with the firm. Finding that the
non-competition agreement did not truly concern retirement benefits in the manner
contemplated by the rule, the Court found that the clause in this rule, allowing
a restriction of practice in agreements dealing with retirement benefits, did
not apply. For reasons of public policy, the Court rejected the idea that departure
compensation packages should be treated as retirement benefits packages for
the purposes of the rule. Thus, unless an agreement restricting a lawyer's right
to practice dealt very specifically with the lawyer's retirement, it would not
be covered by the retirement exception in the rule and would be in violation
of the rule. The Court thus ordered the firm to pay Pierce the benefits that
he had earned as the non-competition agreement could not be considered to meet
the exception of the rule.

5.6:300 Settlements Restricting a
Lawyer's Future Practice

Primary Alabama References: AL Rule
5.6(b)

Background References: ABA Model Rule
5.6(b), Other
Jurisdictions

Commentary: ABA/BNA § 51:1201,
ALI-LGL § 9, Wolfram §
16.2.3

Alabama Commentary:

An attorney's representation of a litigant should not
in any way be impaired by his agreement to restrict his representation of this
client as part of a settlement in the same or a separate matter. (RO-92-01).
Such agreements are considered restrictive covenants which are voided by ARPC
Rule 5.6(b). In the absence of this rule, the interest of the attorney could
possibly be put above the interest of clients being represented. The rule does
not preclude an attorney from participating in confidential settlement agreements
with adverse parties, even though there might be the possibility of negative
consequences for the public or other third parties. (RO-91-17). Thus, such settlements
can remain confidential so long as they do not restrict an attorney's ability
to represent any potential client. Id. The rule is a straightforward
rule that does not contain any exceptions to the prohibitions of a lawyer "offering
or making" such an agreement. J. Anthony McClain, Restriction on a Lawyer's
Right to Practice Law, The Alabama Lawyer, September 1997 at 294. Further, "this
type of restriction would deny potential litigants their choice of counsel by
eliminating those lawyers from the pool of available lawyers." Id. at
295.

5.7 Rule 5.7 Responsibilities Regarding
Law-Related Services

5.7:100 Comparative Analysis of
Alabama Rule

Primary Alabama References: AL Rule
5.7

Background References: ABA Model Rule 5.7,
Other
Jurisdictions

Commentary:

Alabama Commentary:

5.7:101 Model Rule
Comparison

Alabama has not adopted model rule 5.7 or a similar provision.

5.7:102 Model Code
Comparison

Inapplicable.

5.7:200 Applicability of Ethics
Rules to Ancillary Business Activities